Citation Nr: 0114334
Decision Date: 05/22/01 Archive Date: 05/30/01
DOCKET NO. 00-19 463 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Alabama Department of Veterans
Affairs
ATTORNEY FOR THE BOARD
J. T. Hutcheson, Counsel
INTRODUCTION
The veteran had active service from March 1943 to September
1964. In April 1999, the Board of Veterans' Appeals (Board)
denied service connection for the cause of the veteran's
death. The appellant and her accredited representative were
provided with copies of the decision.
This matter came before the Board on appeal from an April
2000 rating decision of the Montgomery, Alabama, Regional
Office (RO) which tacitly reopened the appellant's claim and
again denied service connection for the cause of the
veteran's death. In June 2000, the Vice-Chairman of the
Board denied the appellant's Motion for Reconsideration of
the April 1999 Board decision.
REMAND
The appellant advances that the veteran was exposed to
mustard gas while his Army truck unit was en route to Bari,
Italy during World War II and such exposure contributed to
bringing about his demise. Recently submitted evidence
includes a copy of an amended death certificate wherein
reference is made to a possible tumor of the left lung and a
history of mustard gas exposure. She requests that the
veteran's unit records be searched for entries relating to
his alleged mustard gas exposure. In a June 1993 written
statement, the veteran indicated that he had been attached to
the Army's 3821st Trucking Unit. He stated that he was
exposed to mustard gas when his unit delivered supplies to
Bari, Italy shortly after the bombing attack on the city.
The record does not reflect that a search of the records of
the 3821st Trucking Unit has been conducted. In reviewing a
similar factual scenario, the United States Court of Appeals
for Veterans Claims (Court) has held that the Department of
Veterans Affairs (VA) should obtain all relevant evidence
which may be in VA and other governmental records. Murphy v.
Derwinski, 1 Vet. App. 78, 81-82 (1990).
The statutes governing the adjudication of claims for VA
benefits have recently been amended. The amended statutes
direct that, upon receipt of a complete or substantially
complete application, the VA shall notify the appellant of
any information and any medical or lay evidence not
previously provided to the VA that is necessary to
substantiate her claim. The VA shall make reasonable efforts
to assist the appellant in obtaining evidence necessary to
substantiate her claim. Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, §§ 3, 4, 114 Stat. 2096, 2096-2099
(2000) (to be codified as amended at 38 U.S.C. §§ 5103,
5103A, 5107). The appellant's claim for service connection
for the cause of the veteran's death has not been considered
under the amended statutes. Therefore, the claim must be
returned to the RO. Bernard v. Brown, 4 Vet. App. 384
(1993). Accordingly, this case is REMANDED for the following
action:
1. The RO should contact the National
Personnel Record Center and request that
a search be made of the records of the
Army's 3821st Trucking Unit for the years
1944 and 1945 for any entries pertaining
to the veteran's and/or the unit's
alleged exposure to mustard gas. All
relevant documentation should be
forwarded for incorporation into the
record.
2. The RO must then review the claims
file and ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096
(2000) is completed. In particular, the
RO should ensure that the new
notification requirements and development
procedures contained in sections 3 and 4
of the Act (to be codified as amended at
38 U.S.C. §§ 5102, 5103, 5103A, 5107) are
fully met.
3. The RO should then readjudicate the
appellant's claim of entitlement to
service connection for the cause of the
veteran's death. If the claim is denied,
the appellant and her representative
should be provided with a supplemental
statement of the case and be given the
opportunity to respond.
The appellant is free to submit additional evidence and
argument while the case is in remand status. See
Kutscherousky v. West, 12 Vet. App. 369 (1999).
The appellant's claim must be afforded expeditious treatment
by the RO. The law requires that all claims that are
remanded by the Board or the Court for additional development
or other appropriate action must be handled in an expeditious
manner. See the Veterans' Benefits Improvement Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994) and
38 U.S.C.A. § 5101 (West 1991 and Supp. 2000) (Historical and
Statutory Notes). In addition, the Veterans Benefits
Administration's ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the RO is to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV. Paras. 8.44-8.45 and 38.02-38.03.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration if appropriate. The purpose of this REMAND is
to allow for additional development of the record and due
process of law. No inference should be drawn regarding the
final disposition of the claim.
C.W. Symanski
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board is appealable to the Court. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).